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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6801
Experience:  Significant experience in all areas of employment law.
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I am 72 yrs. old,have been working for current employer since

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I am 72 yrs. old,have been working for current employer since 4/1/2011. Previous with company that was taken over by current corp. for 8 yrs. Corp. hired a worker who is in her thirties 6-8 weeks ago. Now they tell me that they want someone who will be with the company for the long-run, could not see paying for 2 full time employees and reduced my hours from full time (40 hrs.per wk) to part-time (16 hrs. per wk.). No vacation or sick time to be accured, not elegable for any corp. bonuses. Is this age discrimination? I am in excellant health and willing & able to work 40 hrs./week.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. I am so sorry to hear about your reduction of hours, especially given the apparent likelihood that the reduction was age-motivated.

It is absolutely illegal under both state and federal law to discriminate against any employee on the basis of he or she being more than 40 years old. The problem is that very often unlawful discrimination can be difficult if not downright impossible to prove.

Merely being older and having your hours reduced to accommodate a younger employee would not typically in itself satisfy the evidential burden for proving age discrimination, which as the plaintiff you would shoulder. This is especially true in light of the U.S. Supreme Court's holding in Gross v. FBL Financial Services, Inc., in which the court held that a plaintiff claiming age discrimination always bears the ultimate burden of proving age was the “but for” cause of the adverse employment decision, meaning the adverse employment action would not have been taken but for the claimant's age.

In your particular case, your company told you they want someone who will be with the company "for the long haul." This would be additional admissible evidence of discriminatory intent. Would it be enough on its own? That cannot be predicted because ultimately this is a "question of fact," and up to a jury to decide, but perhaps it would be enough to bring a case.

While a case could be brought simply on the facts described, an individual in your circumstance would be in a much stronger position if you could demonstrate, for example, a culture of favoritism among young people (there was recently a case against Google that focused on that), specific statements made to you indicating that age was a motivating factor in your transfer or negative review, or any sort of other adverse statements made about you in regard to your age (i.e. "John Doe is too old to cut it in this profession).

The best thing an employee can do who suspects he is experiencing age discrimination is keep a journal of all incidents and comments that support this belief. The recent California Supreme Court case Reid v. Google makes it more important than ever for an employee to keep record of all incidents because the court in Reid held that "stray remarks" made by employees with non-supervisory authority are admissible in proving a culture of age discrimination within the office.

Here is a link to the entire Reid v. Google opinion, which you may benefit from reading: http://caselaw.findlaw.com/ca-supreme-court/1534156.html

Knowing the above, if you wish to sue for age discrimination, an individual in your circumstance must typically first file a formal complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or California's Department of Fair Employment and Housing. Either the EEOC or the DFEH will issue an authorization to sue after they investigate the claim.

For information on how to bring a claim through California's DFEH, visit this link: http://www.dfeh.ca.gov/Complaints.htm For information on how to bring a claim through the EEOC, visit this link: http://www.eeoc.gov/employees/charge.cfm

So to summarize, while a valid cause of action for age discrimination certainly may exist on the facts described, it may be difficult to prove given the ruling in Gross v. FBL Financial that the plaintiff prove age was the "but for" cause for the adverse employment action. Furthermore, an individual in your circumstance would likely need additional evidence of discriminatory motives in one of the forms suggested above to have a strong case.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
Patrick, Esq., Lawyer
Satisfied Customers: 6801
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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